Guideline 5 – independent representation of children

Guideline 5 – independent representation of children

5.1 – assistance for independent representation of a child

Victoria Legal Aid (VLA) may make a grant of legal assistance for a child or children to be represented by an independent children’s lawyer in family law court proceedings if:

  • a court orders separate representation and asks VLA to appoint an independent children’s lawyer; and
  • VLA decides it is reasonable in the circumstances to make a grant of legal assistance for separate representation.

Appearance and instructing

The independent children's lawyer is encouraged to appear as solicitor advocate at final hearings, but is not required to do so. Where the ICL has briefed counsel to appear at the final hearing, VLA may provide a limited instructing fee for specific parts of the final hearing where it is:

  • a Magellan matter; or
  • a ‘complex matter’; and
  • instructing is essential to the ICL forming a view on what is in the child’s best interests based on the evidence.

Instructing may be required at key points in a final hearing, but will not always be required, for example, during the evidence of non-controversial witnesses or the making of opening or closing submissions.

Special medical procedures involving children

VLA must make a grant of legal assistance for an independent children’s lawyer to separately represent a child if requested to do so in any court proceedings relating to special medical procedures, including sterilisation.

See Guideline 10 – Special medical procedures involving children for information about assistance for parents of a child involved in court proceedings relating to special medical procedures.

5.2 – payment for the costs of independent representation by a party not receiving legal assistance

When making a grant of legal assistance for an independent children’s lawyer VLA must consider the ability of the parties to contribute to the associated costs. This includes costs associated with preparation of a family report and the professional costs and disbursements associated with the grant of legal assistance for the independent children’s lawyer.

VLA may determine an amount to be paid by each party, taking into account:

  • the party’s capacity to pay;
  • the party’s legally aided status; and
  • contributions assessed on existing files.

The requirement for parties to contribute to the costs of an independent children’s lawyer does not apply to proceedings relating to special medical procedures involving a child, regardless of whether any of the parties to the proceedings is in receipt of a grant of legal assistance.

If a party does not pay their share

If a party refuses or fails to pay the amount determined, then VLA must continue to provide a grant of legal assistance for the independent children’s lawyer.

However, VLA will do so only on condition that the independent children’s lawyer seeks an order for costs against that party at an appropriate time in the court proceedings and only if appropriate under section 117 of the Family Law Act 1975.

If at least one of the parties to the court proceedings is not receiving a grant of legal assistance

If VLA makes a grant of legal assistance for the separate representation of a child in court proceedings and at least one of the parties to the proceedings has not been provided with a grant of legal assistance, then, usually, VLA must:

  • tell each party not receiving a grant of legal assistance that each may have to pay an equal portion of the total costs and disbursements of the independent children’s lawyer;
  • take into account the capacity to pay of each party not receiving a grant of legal assistance, and determine whether to waive or to reduce the amount that party must pay;
  • tell each party not receiving a grant of legal assistance of the amount which VLA requires them to pay; and
  • require each party not receiving a grant of legal assistance to pay the necessary amount in the way VLA has determined.

Definitions

A complex matter may include one or more of the following:

  • allegations of significant mental health issues of a parent or a child, that present an unacceptable risk to the child;
  • allegations of significant drug or alcohol issues of a parent or a child, that present an unacceptable risk to the child;
  • significant alienation of the child against a parent;
  • a proposal for international relocation;
  • contested evidence of multiple experts;
  • allegations of physical, psychological or sexual abuse (which are more than 12 months old and hence it is not a Magellan matter); and/or
  • neither party may be a suitable carer for the child.